Sandhu v Minister for Immigration

[2015] FCCA 3440

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3440

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Student (Temporary) (Class TU) visa – whether Tribunal failed to properly consider application – whether an adjournment application was improperly refused by the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, Schedule 2, cls.572.222, 572.223, 572.224, 572.225, 572.227

Applicant: KULDEEP SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1732 of 2015

Judgment of: Judge Street

Hearing date: 21 December 2015

Date of Last Submission: 21 December 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Gell
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1732 of 2015

KULDEEP SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 28 May 2015 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) visa.

2. The applicant is a citizen of India who entered Australia on 25 November 2014 as the holder of a Visitor visa FA600, which was due to cease on 25 December 2014.  On 24 December 2014, the applicant applied for a Student visa.  The course identified by the applicant was a Diploma of Hospitality with course dates on 27 January 2015 to 31 March 2017.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of the following clauses:  cl.572.222, regarding the provision of a certificate of enrolment;  cl.572.223, regarding evidence under schedule 5A, including financial capacity and English proficiency;  cl.572.224, regarding public interest criterion (“PIC”) 4005, regarding the applicant undertaking a medical assessment;  and cl.572.225, regarding evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay.

4. The delegate noted that the applicant had applied for a student visa on 24 December 2014, which was refused on 2 January 2015. On 2 January 2015, the applicant had been requested to provide evidence of his confirmation of enrolment, his overseas student health cover, financial capacity to the amount of $27,642, English language proficiency and medical examination, and exceptional reasons for the grant visa, as required under cl.572.227.

5. The delegate noted that the applicant had been given 28 days to submit the relevant information, and at the date of the delegate’s decision, being 11 February 2015, no such documents had been provided by the applicant to the delegate.  The Tribunal sent the applicant a letter on 1 May 2015 inviting the applicant to attend a hearing to take place on 28 May 2015 to give evidence and present arguments.

6. The applicant failed to appear on that day to give evidence and present arguments, and the Tribunal recorded consideration of a request for an adjournment by the applicant made on 26 May 2015 on the basis of a medical certificate that was patently insufficient and unsatisfactory as an explanation for the failure and inability of the applicant to attend a hearing to take place on 28 May 2015.  The medical certificate did not identify any basis upon which the medical expert was of the view the applicant would be unable to attend the Tribunal or why that would be so.

7. In response to the request for an adjournment, the Tribunal sent to the applicant an email dated 27 May 2015 confirming a refusal of the request for an adjournment, identifying the deficiency in the certificate, and also identifying a willingness to entertain a telephone hearing.  On the same date, being 27 May 2015, a member of the staff of the Tribunal made telephone contact with the applicant and identified that she was calling on behalf of the Tribunal, and that call then dropped out.

8. The applicant failed to make any further attempt to contact the Tribunal or to attend the hearing or to seek to arrange any telephone hearing.  No explanation has been offered by the applicant in respect of his failure to attend at that hearing.  It was open to the Tribunal, in the circumstances identified, to decline to adjourn the hearing, as the applicant had been provided with a genuine opportunity to engage in a hearing, and the refusal to adjourn the matter by the Tribunal cannot be said to lack in evidence and intelligible justification.  The grounds of the application are as follows:

   DIBP made error in making a decision:

   1. I ENTERED AUSTRALIA ON VISITOR VISA. I CAME TO VISIT AUSTRALIA BUT I LIKED THE WAY OF EDUCATION IN AUSTRALIA. I HAVE PASSION TO BEOMCE COOK.

   2. I APPLIED FOR STUDENT VISA IN DIPLOMA OF HOSPITALITY. THIS COURSE WOULD HAVE TAKEN ME TO MY CAREER GOAL AS AUSTRALIAN EDUCATION IS RESPECTED INTERNATIONALLY.

   3. DIBP DID NOT GRANTED ME VISA WHICH AFFECTED MY AMBITIONS TO REACH MY CAREER GOAL

   4. MY MRT HEARING WAS SCHEULED ON 28TH MAY 2015 BUT I WAS DYING WITH MY BACK PAIN. I REQUESTED TO POSTPONE MY HEARING DATE BUT MRT DID NOT POSTPONE THE DATE RATHER MADE DECISION IN MY ABSENCE.

   5. I WAS RIPPED OFF MY RIGHT OF REVIEW BY MRT. I WAS NOT GIVEN AMPLE OPPORTUNITY TO PRESENT MY ARGUMENTS AND MRT MADE DECISION IN HASTE.

   6. MRT JUST STAMPED THE DECISION OF DIBP WITHOUT HEARING ME.

9. A Registrar of the Court made orders on 13 August 2015 providing the applicant with an opportunity to file an amended application, further affidavit evidence and submissions.  No such documents were filed by the applicant.

10. Grounds 1, 2 and 3 fail to articulate any arguable jurisdictional error.  I accept the first respondent’s submission that grounds 1, 2 and 3 fail to allege any matter that could constitute a jurisdictional error.

11. Ground 4 asserts that the applicant was dying due to back pain and that the Tribunal refused to postpone his hearing date and made a decision in his absence.  The proposition that the applicant was dying from back pain is not supported by any medical evidence or any evidence from the applicant.  It is clear that the Tribunal received the certificate from Dr Khan, and the applicant had been well enough to obtain the certificate on 26 May 2015.

12. No explanation has been proffered by the applicant as to his failure to obtain any other medical evidence identifying an inability to attend the hearing or his failure to contact the Tribunal in relation to his request for an adjournment, which at no stage was the applicant informed was being granted.  It is clear that a telephone communication took place with the applicant from the Tribunal, and the applicant made no endeavour to follow up in relation to that telephone communication or to seek to attend, by telephone or in person, the hearing scheduled for 28 May 2015.

13. The Tribunal’s reasons summarised the steps that were taken to contact the applicant in relation to the request for adjournment and to identify the refusal of that adjournment application.  In the circumstances of the present case, it was not unreasonable for the Tribunal to proceed to determine the applicant’s application, and no jurisdictional error is made out by ground 4 of the application.

14. In relation to ground 5, the assertion that the applicant’s right of review was ripped off by the MRT is wholly without substance.  It is due to the applicant’s own conduct that he failed to attend the hearing.  It is due to the applicant’s own conduct that he failed to communicate with the Tribunal any proper ground for seeking an adjournment.  It was a matter for the applicant to provide proper material to support an adjournment and to communicate with the Tribunal in relation to that request in circumstances where the applicant was well aware of the intended hearing date on 28 May 2015.

15. It was the applicant that deprived himself of the opportunity to attend the hearing, and for the reasons given, it was reasonable for the Tribunal to proceed with the review, and no jurisdictional error is made out by ground 5.

16. In relation to ground 6, the proposition that the Tribunal just stamped the decision of the delegate is wholly without substance and is inconsistent with the careful and thorough reasons for the decision of the Tribunal.  For the reasons as given, it is clear that the applicant deprived himself of the opportunity to attend the hearing that was to take place on 28 May, and the suggestion of a rubber stamping exercise is utterly without substance.  Ground 6 fails to make out any jurisdictional error.

17. The applicant was invited to put submissions in response to the first respondent’s submissions or in support of his application.  The applicant indicated that whatever is filed is what he relies upon.  The first respondent summarised the reasons why the application failed to identify a jurisdictional error, and in response, the applicant indicated there was nothing further he wished to put.  I am satisfied that the application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 December 2015